Before
the Court are two motions for partial summary judgment by
Defendant Weber Marine, L.L.C.[1] The first motion involves
Plaintiff Nayana Ambarish Parekh's claim for loss of
support in her general maritime wrongful death action and the
computation of Decedent Captain Ambarish Parekh's
work-life expectancy.[2] The second motion involves Plaintiff's
claim for damages for loss of society on behalf of Captain
Parekh's adult children and minor
grandchildren.[3] The motions are opposed.[4] Defendant Weber
Marine, L.L.C. filed replies to Plaintiff's
oppositions.[5] For the reasons that follow, the motions
are GRANTED.

BACKGROUND

The
complaint alleges that on July 17, 2016, Captain Ambarish
Ramnikari Parekh, a marine cargo surveyor employed by
Maritech Commercial, Inc., was scheduled to board the M/V
AFRICAN RAPTOR to perform port captaincy survey services
while the vessel was moored in the Mississippi
River.[6] While attempting to board the M/V AFRICAN
RAPTOR from the M/V MISS RACHEL, Captain Parekh fell into the
river.[7] Captain Parekh's body was recovered in
the Mississippi River on July 19, 2016, wearing the
uninflated personal flotation device he was wearing when he
fell.[8]

Nayana
Ambarish Parekh, Captain Parekh's spouse, filed a
complaint in this Court on August 9, 2016, individually and
as personal representative of Captain Parekh.[9] In addition to
causes of action for negligence and strict product liability,
[10]
Plaintiff pursues a wrongful death action under general
maritime law.[11] Plaintiff alleges she “has
suffered loss of consortium, society, and financial support,
for which [she] is entitled to
damages[.]”[12] During discovery, Plaintiff clarified
that she seeks damages for herself and on behalf of all
Captain Parekh's beneficiaries, including their adult
children Siddharth Parekh and Sandeep Parekh, and their
grandchildren Rajveer, Moksh, Tara, and Trisha.[13]

Defendant
Weber filed these motions for partial summary judgment on
November 28, 2017.[14] In the first motion, [15] Weber seeks a
ruling limiting the Plaintiff's lost-wages recovery to
“an amount commensurate with the Bureau of Labor
Statistics-published work-life
expectancy.”[16] Weber argues the “proper measure
of time for assessing lost future wages is the statistical
average for one's work-life expectancy, ” which,
based on the calculations of Weber's expert witness,
would be an additional 1.72 to 6.8 years beyond Captain
Parekh's 67th birthday.[17] In response,
Plaintiff asserts Captain Parekh would have continued to work
until his natural death, and so Plaintiff is entitled to
recover lost wages consistent with his estimated life
expectancy of 84.13 years.[18]

In the
second motion, [19] Weber seeks a judgment that only Ms.
Parekh, as Captain Parekh's widow, may recover damages
for loss of society.[20] Weber contends damages for loss of
society under general maritime law are available only to the
dependent relatives of maritime employees. Accordingly, Weber
asserts that Siddharth, Sandeep, Rajveer, Moksh, Tara, and
Trisha, to the extent they are non-dependent relatives of
Captain Parekh, are not entitled to loss-of-society
damages.[21]

LEGAL
STANDARD

Summary
judgment is appropriate only “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of
law.”[22] “An issue is material if its
resolution could affect the outcome of the
action.”[23]When assessing whether a material factual
dispute exists, the Court considers “all of the
evidence in the record but refrains from making credibility
determinations or weighing the evidence.”[24] All
reasonable inferences are drawn in favor of the nonmoving
party.[25]There is no genuine issue of material
fact if, even viewing the evidence in the light most
favorable to the nonmoving party, no reasonable trier of fact
could find for the nonmoving party, thus entitling the moving
party to judgment as a matter of law.[26]

If the
dispositive issue is one on which the moving party will bear
the burden of persuasion at trial, the moving party
“must come forward with evidence which would
‘entitle it to a directed verdict if the evidence went
uncontroverted at trial.'”[27] If the moving party fails
to carry this burden, the motion must be denied. If the
moving party successfully carries this burden, the burden of
production then shifts to the nonmoving party to direct the
Court's attention to something in the pleadings or other
evidence in the record setting forth specific facts
sufficient to establish that a genuine issue of material fact
does indeed exist.[28]

If the
dispositive issue is one on which the nonmoving party will
bear the burden of persuasion at trial, the moving party may
satisfy its burden of production by either (1) submitting
affirmative evidence that negates an essential element of the
nonmovant's claim, or (2) demonstrating there is no
evidence in the record to establish an essential element of
the nonmovant's claim.[29] When proceeding under the
first option, if the nonmoving party cannot muster sufficient
evidence to dispute the movant's contention that there
are no disputed facts, a trial would be useless, and the
moving party is entitled to summary judgment as a matter of
law.[30] When, however, the movant is proceeding
under the second option and is seeking summary judgment on
the ground that the nonmovant has no evidence to establish an
essential element of the claim, the nonmoving party may
defeat a motion for summary judgment by “calling the
Court's attention to supporting evidence already in the
record that was overlooked or ignored by the moving
party.”[31] Under either scenario, the burden then
shifts back to the movant to demonstrate the inadequacy of
the evidence relied upon by the nonmovant.[32] If the movant
meets this burden, “the burden of production shifts
[back again] to the nonmoving party, who must either (1)
rehabilitate the evidence attacked in the moving party's
papers, (2) produce additional evidence showing the existence
of a genuine issue for trial as provided in Rule 56(e), or
(3) submit an affidavit explaining why further discovery is
necessary as provided in Rule 56(f).”[33]
“Summary judgment should be granted if the nonmoving
party fails to respond in one or more of these ways, or if,
after the nonmoving party responds, the court determines that
the moving party has met its ultimate burden of persuading
the court that there is no genuine issue of material fact for
trial.”[34]

“[U]nsubstantiated
assertions are not competent summary judgment evidence. The
party opposing summary judgment is required to identify
specific evidence in the record and to articulate the precise
manner in which that evidence supports the claim. ‘Rule
56 does not impose upon the district court a duty to sift
through the record in search of evidence to support a
party's opposition to summary
judgment.'”[35]

LAW
AND ANALYSIS

I.
Loss of Support

Plaintiff
asserts a wrongful death claim under general maritime
law.[36] In addition to damages for loss of
consortium and society, she seeks recovery for the loss of
financial support provided by Captain Parekh.[37] In
calculating these damages, Plaintiff argues that Captain
Parekh intended to work until he died, and as a result the
loss-of-support damages should be based on his life
expectancy. According to Plaintiff's expert, Dr. Robert
F. Hebert, Captain Parekh's life expectancy was 84.13
years.[38]

A
damages award for future lost wages is generally based upon
the maritime employee's work-life expectancy-the
“average number of years that a person of a certain age
will both live and work.”[39] Courts use work-life
expectancy data to calculate future earnings unless there is
evidence supporting a variation from the
average.[40] This evidence must be more than mere
conclusory assertions regarding the decedent's intentions
to work late into life, however.[41] In Barto v. Shore
Const., L.L.C, for example, the Fifth Circuit reversed a
district court decision to allow an above-average work-life
expectancy calculation based only on the plaintiff's
testimony that he planned to work until he could retire,
“[w]hatever the retirement age is.”[42] The Fifth
Circuit stated that although a stated retirement goal may be
relevant, “even if the district court believed [the
plaintiff] wanted to work until age 67, wanting to work until
age 67 is not the only or even the most significant factor in
determining whether someone actually will work until age
67.”[43]Looking to its holding in Madore v.
Ingram Tank Ships, Inc., the Fifth Circuit reiterated
that, in order to claim loss-of-support damages beyond the
average work-life expectancy, the plaintiff must provide
“evidence that a particular person, by virtue of his
health or occupation or other factors, is likely to live and
work a longer, or shorter, period than the
average.”[44]

The
Fifth Circuit subsequently clarified the nature of the
evidence necessary to meet the Madore
standard.[45] In Deperrodil v. Bozovic Marine,
Inc., the court affirmed the district court's
determination that a higher-than-average work-life estimate
was warranted, because the plaintiff “fully developed
the evidentiary basis for such a
departure.”[46] The plaintiff had employed a
vocational-rehabilitation expert and disclosed the medical
history on which the expert based her opinion. In
Deperrodil, as in Barto, the plaintiff had
stated a retirement goal.[47] Unlike Barto,
however, the goal was corroborated by an agreement between
the plaintiff and his spouse, and a vocational counselor
testified it was a reasonable goal, considering the
plaintiff's medical history, work history, and future
medical prognosis.[48]

In its
motion for partial summary judgment, Weber asserts that
Plaintiff has failed to identify evidence that will be
introduced at trial sufficient to meet the Madore
standard.[49] Weber presents undisputed facts that
plaintiffs have not presented any expert testimony from a
vocational counselor, expert in rehabilitation, or medical
doctor who will testify that Captain Parekh was capable of
continuing in his line of work for another seventeen
years.[50]

In
response, Plaintiff provided an affidavit supporting her
claim that Captain Parekh could have worked longer than the
statistical average for work-life expectancy. According to
Plaintiff's affidavit, Captain Parekh “had no plans
to retire and intended to work for the rest of his
life.”[51] Plaintiff also provided the deposition
of Captain Parekh's employer, Chander Gorowara, who, when
asked about how long Captain Parekh intended to work,
testified, “Forever. Until the legs give out. We used
to talk about this quite often. Here we have an office pool
for the lottery. We used to say, one day, my fantasy is
[that] we win the Mega Millions and all of us will retire.
And he used to say, no, not me, you can hand over the keys to
me and I will continue.”[52] Gorowara further testified
that Captain Parekh was physical fit for his age, and fully
expected him to continue working indefinitely, stating,
“Physically, he was fit. Mentally, he was strong, and
to me, as a business owner, he was very dependable. Until he
could not work, he would have worked.[53]

The
Court finds, even weighing all evidence in favor of
Plaintiff, that she has not created a genuine dispute of
material fact regarding Captain Parekh's capability of
working longer than his statistical work-life average. Under
Madore, Plaintiff must provide “evidence that
a particular person, by virtue of his health or
occupation or other factors, is likely to live and work
a longer, or shorter, period than the
average.”[54] None of Plaintiff's evidence does
so. First, Plaintiff's self-serving affidavit is not
persuasive summary judgment evidence.[55] The Fifth
Circuit rejects attempts to defeat summary judgment by the
submission of self-serving affidavits and
testimony.[56] Second, the deposition testimony of Mr.
Gorowara, while it may corroborate Plaintiff's assertions
of Captain Parekh's desire to work, fails to show how
either Captain Parekh's medical condition or the nature
of his employment makes it likely he would work longer than
the average. For example, Mr. Gorowara does not explain how
Captain Parekh could have continued as a marine surveyor-an
obviously rigorous line of work-into his mid-80s. Similar to
the plaintiff in Barto, Captain Parekh was employed
in a highly dangerous, physically demanding field. As the
Fifth Circuit stated, an employee in such a field
“might have become disabled before [his intended
retirement] as a result of illness or some other
misadventure. . . . [Plaintiff] presented no evidence that
such events were particularly unlikely given his health or
other factors.”[57] In this case, Plaintiff has likewise
failed to provide evidence that “such events were
particularly unlikely” to occur with respect to Captain
Parekh.[58]

Further,
while Mr. Gorowara, as Captain Parekh's employer, may
have an understanding of Captain Parekh's work habits and
employment history, he is not a vocational or medical
professional. Therefore, he is unable to give expert
testimony as to Captain Parekh's medical condition and
physical fitness for continued service in an extremely
hazardous profession. Without expert testimony, medical
records, or other valid summary judgment evidence to describe
the state of Captain Parekh's health and the nature of
his duties, Plaintiff's submissions do not amount to more
than the assertion that Captain Parekh “had no plans to
retire and intended to work for the rest of his life.”
This does not “fully develop[] the evidentiary basis
for [a] departure” from the work-life expectancy
average.[59]

Although
under Deperrodil the Fifth Circuit does not mandate
that Plaintiff hire a vocational rehabitation expert in order
to meet the Madore standard, Plaintiff must provide
evidence that explains why Captain Parekh was “likely
to live and work [] longer” than the statistical
average. The Court finds Plaintiff has failed to create a
genuine dispute of material fact with regard to Captain
Parekh's likelihood of working longer than the average
work-life expectancy. Defendant is entitled to a ruling that
Plaintiff may only recover loss of support damages consistent
with average work-life expectancy.

II.
Loss of Society

In
Plaintiff's general maritime wrongful death action,
Plaintiff claims damages for loss of society for herself and
Captain Parekh's beneficiaries. According to Plaintiff,
these beneficiaries include Captain Parekh's adult sons
Siddharth and Sandeep, and his four grandchildren, Rajveer,
Moksh, Tara, and Trisha.

The
Supreme Court in Moragne v. States Marine Line,
Inc.[60] recognized the existence of a wrongful
death claim under general maritime law for a widow of a
longshoreman killed while working aboard a vessel in state
territorial waters.[61] The Court subsequently held in
Sea-Land Services Inc. v. Gaudet[62] that the
maritime wrongful death action allowed “the
decedent's dependents [to] recover damages for their loss
of support, services, and society, and funeral
expenses.”[63] In interpreting the scope of damages
recoverable under a Moragne wrongful death action,
the Fifth Circuit Court held in Miles v.
Melrose[64] that a mother of a seaman who had died
in territorial waters was not entitled to damages for loss of
society because she was not dependent on the
decedent.[65]The Supreme Court affirmed, but on the
grounds that because the decedent was a Jones Act seaman,
recovery for loss of society in a general maritime action
would not be permitted.[66]

The
Supreme Court has not addressed recovery for loss of society
in general maritime actions since Miles, but the
Fifth Circuit later held in In re American River Transp.
Co. that non-dependent survivors of a deceased
longshoreman or harborworker may not recover for loss of
society.[67] Although the Fifth Circuit found the
distinction between dependent and non-dependent survivors
“is not explicitly required by the relevant statutes or
Supreme Court precedent, ” recovery by non-dependent
survivors would:

(1) impede uniformity by going against the substantial
majority of the federal court decisions on this issue, and
(2) create an anomaly by expanding the class of beneficiaries
of nonseamen who may recover for loss of society in the
aftermath of the Supreme Court's denial [in Miles] of any
such recovery to the beneficiaries of seaman.[68]

Accordingly,
the Fifth Circuit concluded that “non-dependent
[beneficiaries] of a longshoreman who died in territorial
waters are not entitled to recover damages for loss of
society.”[69] “Dependency, ” for the
purposes of general maritime wrongful death claims, carries
its “ordinary meaning” of financial
dependency.[70] An adult child may be dependent on his
or her parent, [71] just as a parent may be dependent on a
minor child.[72]

Defendant
Weber seeks summary judgment that Plaintiff may seek only
recovery for her loss of support on the grounds that Captain
Parekh's children Siddarth and Sandeep, and his
grandchildren Rajveer, Moksh, Tara, and Trisha, are not his
dependents.[73] Weber puts forward the following
undisputed facts. Captain Parekh has three adult children:
Siddarth Parekh, 40 years old; Prerna Girdhar, 38 years old;
and Sandeep Parekh, 35 years old.[74] Rajveer, Moksh, Tara, and
Trisha Parekh are Captain Parekh's
grandchildren.[75] Siddarth and Sandeep contribute to a
joint account utilized by the entire household.[76] Captain
Parekh's tax returns from 2011 to 2015 do not list any of
his children or grandchildren as dependents.[77]

Plaintiff
disputes whether Siddarth, Sandeep, Rajveer, Moksh, Tara, and
Trisha are financially dependent on Captain Parekh. According
to testimony by Siddharth and Sandeep and an affidavit by the
Plaintiff, the entire family lived in the same house in
LaPlace, Louisiana, [78] and shared a communal bank account into
which they all contributed that was used for jointly paying
bills and expenses.[79] Plaintiff's affidavit states that
Captain Parekh “monetarily supported everyone who lived
in the house, ” and “was the primary source of
monetary support for everyone living in the
house.”[80] Captain Parekh “deposited the vast
majority of funds into the shared Chase Bank
account.”[81]Sandeep testified that he, his wife, his
children, his brother, and his brother's wife and
children, all lived in the house in LaPlace.[82] Sandeep and
Siddharth further testified that everyone in the extended
family paid into a single checking account which is used for
day-to-day expenses.[83]

The
Court finds Plaintiff's affidavit and the deposition
testimony of Captain Parekh's sons are insufficient to
create a genuine issue of material fact. The Fifth Circuit
rejects the use of self-serving affidavits and testimony to
defeat summary judgment.[84] Of course, it is well-established
that a party's verified answers to interrogatories may
serve as support or rebuttal of a motion for summary
judgment, [85] and a party's own sworn affidavits
can serve to create a genuine issue of material fact
sufficient to defeat a motion for summary
judgment.[86] However, a non-moving party must come
forward with more than “conclusory allegations,
speculation, and unsubstantiated
assertions.”[87] In this case, Plaintiff's affidavit
is wholly conclusory, stating only that Captain Parekh
“monetarily supported everyone who lived in the house,
” and “was the primary source of monetary support
for everyone living in the house, ”[88] without
providing any factual basis for support. Further, the
testimony of Sandeep and Siddharth Parekh is immaterial to
the issue of financial dependency. The sons simply describe
the family's living arrangement, and do not testify
regarding their or their children's financial dependency
on Captain Parekh.

Plaintiff
has not provided any evidence beyond her own self-serving
affidavit and the testimony of the potential beneficiaries.
While Plaintiff avers that “abundant uncontested
evidence [exists] that Siddharth and his children, and
Sandeep and his children, were financially dependent upon
Decedent under applicable law, ”[89] Plaintiff has
not produced any bank statements, tax returns, pay stubs, or
the like, that would establish financial dependency between
Captain Parekh and his adult children and their progeny.

Plaintiff
has failed to create a genuine dispute of material fact as to
whether Siddharth, Sandeep, Rajveer, Moksh, Tara, and Trisha
Parekh are financial dependents of Captain Parekh. Weber is
entitled to a judgment that only Plaintiff Nayana Ambarish
Parekh may seek damages for loss of society in her general
maritime wrongful death action.

CONCLUSION

IT
IS ORDERED that Defendant Weber Marine, L.L.C.'s
motions for partial summary judgment[90] are
GRANTED.

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